This was an equitable action, brought to prove and establish an unrecorded and alleged lost deed of eighty acres of land, which deed, it was claimed, was made, executed, and delivered in the summer of 1877 by one William F. Furlong to James Edwards, and also for the purpose of having the title to the eighty acres declared to be in plaintiffs, and of having it adjudged that defendants, Henry E. and Anna L. Simons, M. A. Zella, M. E. Hodder, and Isaac W. Arnold, had and have no-right, title, or interest therein.
The record is very complicated, because a great deal of irrelevant and useless testimony was received by the court below, trying the case without a jury. Upon its findings of fact the court made conclusions of law in accordance with the prayer for relief found in the complaint, and, upon judgment being entered as thereby ordered, this appeal was taken by defendants Anna E. and Henry E. Simons and M. E. Hodder.
It was shown by the records in the office of the register of deeds, and it stands conceded, that Furlong was the owner of the property 011 June 6, 1877, on which day he executed and delivered to one Yerkes a mortgage thereon to secure the sum of $80, which mortgage was duly recorded on the same day. It,further appears from this record that on August 14 one James Edwards and his wife executed and delivered to Michael Eloyd, father of these plaintiffs, a warranty deed of tlie eighty acres, which was duly recorded September 14, the consideration nanied therein being $900; and, further, that the land was thus conveyed subject to the Yerkes mortgage. July 13, 1878, this mortgage was satisfied of record, and it was shown aliunde that the amount due thereon was paid by Eloyd.
The record further disclosed that on June 29, 1893, Blake and his wife conveyed the eighty acres by quitclaim deed to defendant Anna D. Simons, -which deed was placed on record July 7, 1893, and that on the same day there was recorded another quitclaim deed, of date February 5, 1893, in which Duiten and his wife were grantors, and Mrs. Simons grantee; that subsequently, in 1901, Hodder foreclosed the Duiten mortgage, under the power, becoming the purchaser himself at the sale for the sum of $1,168.26, the amount claimed to be due; that the sheriff’s certificate of sale executed and delivered to him bears date April 5, 1902, and, with other papers in connection therewith, was recorded April 14, 1902. The regularity of this foreclosure, so far as form is concerned, is not questioned.
The principal question litigated in the court below was as to the execution and delivery of the alleged lost deed. It was claimed at the trial that in the month of June, 1877, Furlong executed and delivered to James Edwards a warranty deed of the eighty acres for an expressed and then paid consideration of $500, which deed was, in terms, made subject to the Yerkes mortgage of $80, and, further, some three months afterwards this deed was in the possession of one Pillsbury, alleged to have then been the agent of Michael Lloyd, and that soon aft-terward it was lost, while in Pillsbury’s possession. There was testimony, of more or less weight, tending to support these claims. The court below found the facts to be that such a deed was made, executed, and delivered by Furlong, then owner of the land, to James Edwards, who conveyed to Lloyd, as before stated, and that this deed was lost, as claimed. It also found that none of the subsequent purchasers of the land, save Lloyd, purchased in good faith or for value. And it made the same finding as to Dewees, the mortgagee named in the Luiten mortgage, and as to each of the subsequent assignees, including Plodder. For the purpose of this opinion, we shall assume, without so deciding, that the trial court was'justified in its findings of fact, and that they warranted the conclusions of law. Such an assumption is prqper at this time, in view of the fact that there were a number of errors committed by the court below in its rulings upon the admission of evidence, and that a new trial must be had.
It is to be noticed that the title asserted by the defendants is wholly based and depends upon the deed in which Furlong was the grantor, and Dewees was grantee. This deed bore date in 1882, but it was not placed upon record until 1891, nine years afterwards. If the grantee of that deed, or either one of his subsequent grantees, bought the land
These rules as to good faith and a purchaser for value and the burden of proof apply with equal force to the claim made by defendant Hodder as an assignee of the Luiten mortgage. It was required of him to show either that Dewees was a good-faith purchaser for a valuable consideration, or that Silsby, his assignee, or the missionary society, as-signee of Silsby, or himself, as assignee of the society, purchased the mortgage in good faith and for a valuable consideration. Without regard -to the rule as to the burden of proof, plaintiffs’ counsel attempted to show at the trial, and affirmatively, that neither Dewees nor Luiten nor Mrs. Simons purchased in good faith or for a valuable consideration, and also that the assignees of the original mortgagee were not good-faith purchasers, and did not part with a valuable consideration for their respective assignments. This led to the introduction of much irrelevant and considerable inadmissible and prejudicial testimony.
This testimony was certainly prejudicial to defendants’ case. It was the rankest kind of hearsay. Dean was not a party to the suit, nor was he in any way interested in the result, nor was he acting for Dewees or for any of the defendants in any capacity at the time of the conversation with Leonard. Nor had it been shown that his firm ever acted for Dewees, except as a collection agent.
There was further testimony of this import, and equally as objectionable and prejudicial. Mrs. Edwards, widow of the grantee in the alleged lost deed, was permitted to testify that she called upon Mr. ■Knight about 1885, and had a conversation with him respecting the loss of the deed. It is not claimed or shown that Knight ever saw ■or heard of this instrument, or that he ever had it in his possession. She was allowed to testify, against objection, that Knight, after inquiries about other papers concerning other property, said -to her,
“By the way, do you know anything about that lost Furlong deed?”.
Counsel for the plaintiffs contended that all of this testimony was competent and relevant in corroboration of other evidence as to the agency. of Knight & Dean, and also that it was proof of notice of Dloyd’s right to them, as agents of Dewees, at the time the Duiten-Dewees deed was made, and also ten years later, when this deed was recorded. That Knight & Dean were agents of Dewees for the purpose of loaning money and for the collection thereof had no tendency to show that they were his agents for the purpose of buying land, or that they acted as his agents in this transaction, or that he was a bad-faith purchaser, or that he had notice, through them, actual or of a character to put him upon inquiry, as to Dloyd’s rights. Mrs. Dloyd was also permitted to testify as to statements made to her by Mr. Pillsbury some years before he died. In so far as this testimony tended to establish the loss of the deed, it might have been admissible, but it went much further, and to this extent it should have been excluded.
Order reversed and new trial granted.